# Yogesh Kesarwani & Anr v. Devi Shankar Shukla

- **Citation:** (2022) 2 ILRA 172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-17
- **Case number:** Second Appeal No. 202 of 2017
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-kesarwani-anr-v-devi-shankar-shukla-48102
- **Pages:** 25

## Headnote

A. Partition Act, 1893 - Section 4 -
Transfer of Property Act, 1882 - Section
44 - Section 44 of the Transfer of Property Act
indicates that a stranger to a family who
becomes the transferee of an undivided share of
one of the co-owners in a dwelling house
belonging to an undivided family cannot claim a
right of joint possession of the house with the
other
co-owners
of
the
dwelling
house.
However, through Section 4 of the Partition Act
the legislature has given the Court the power to
compel a stranger who has acquired by
purchasing a share in the family dwelling house,
when he seeks for partition, to sell his share to
the members of the family who are the owners
of the rest of the house at a valuation to be
determined by the Court. (Para 52-53)

The Court has to be extremely cautious in
determining the valuation upon which the
stranger purchaser is compelled to sell his
share. The valuation has to be reasonable and
should be a well accepted mode balancing the
equities and rights of the respective parties.
Though there is no straight jacket method which
is adopted in all the cases for valuation but
ordinarily the date of valuation would be the
date when the right to purchase accrues. In
other words, it cannot be a date prior but must
be the date of making an unconditional offer to
purchase
either
by
making
a
separate
application
or
otherwise
by
making
the
undertaking in pleadings. (Para 85)
Second Appeal Allowed. (E-10)

List of Cases cited:

## Text

_Characters 0–39,464 of 86,090. This is a partial read: ask again with offset=39464 for what follows._

172 INDIAN LAW REPORTS ALLAHABAD SERIES
incident had actually occurred, needs to be
looked into only at the time of trial and
should not be seen at the time of
consideration of discharge application.

43. Having considered the law on the
subject and the order impugned, this Court
finds that the trial court has considered in
detail each and every aspect of the matter at
length and then passed an appropriate
order. The scope under Criminal Revision
being restricted to correct an apparent error
in law or a perversity in fact, this Court
finds no good ground to interfere in this
Criminal Revision.

44. This Criminal Revision is
accordingly dismissed.
----------
(2022)02ILR A172
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 202 of 2017

Yogesh Kesarwani & Anr. ...Appellants
Versus
Devi Shankar Shukla ...Respondent

Counsel for the Appellants:
Ravi Nath Tilhari, Deepanshu Dass, Lalta
Prasad Misra, Pradeep Chandola

Counsel for the Respondent:
Brijesh Kumar, Ritesh Kumar Srivastava

A. Partition Act, 1893 - Section 4 -
Transfer of Property Act, 1882 - Section
44 - Section 44 of the Transfer of Property Act
indicates that a stranger to a family who
becomes the transferee of an undivided share of
one of the co-owners in a dwelling house
belonging to an undivided family cannot claim a
right of joint possession of the house with the
other
co-owners
of
the
dwelling
house.
However, through Section 4 of the Partition Act
the legislature has given the Court the power to
compel a stranger who has acquired by
purchasing a share in the family dwelling house,
when he seeks for partition, to sell his share to
the members of the family who are the owners
of the rest of the house at a valuation to be
determined by the Court. (Para 52-53)

The Court has to be extremely cautious in
determining the valuation upon which the
stranger purchaser is compelled to sell his
share. The valuation has to be reasonable and
should be a well accepted mode balancing the
equities and rights of the respective parties.
Though there is no straight jacket method which
is adopted in all the cases for valuation but
ordinarily the date of valuation would be the
date when the right to purchase accrues. In
other words, it cannot be a date prior but must
be the date of making an unconditional offer to
purchase
either
by
making
a
separate
application
or
otherwise
by
making
the
undertaking in pleadings. (Para 85)
Second Appeal Allowed. (E-10)

List of Cases cited:

1. Malati Ramchandra Raut & ors. Vs Mahadevo
Vasudeo Joshi & ors. 1991 Sup (1) SCC 321
(followed)

2. Badri Prasad Narain Prasad Chaudhary & ors.
Vs Nil Ratan Sarkar (1978) 3 SCC 30

3. Iliyas Ahmad & ors. Vs Bulaqi Chand & ors.
AIR 1917 (Alld.) 2

4. Krushnakar & ors. Vs Kanhu Charan Kar &
ors. AIR 1962 (Ori) 85

5. An unreported case of Govind Ji Doase Vs
Kamji Mavji Civil Revision No. 18 of 1951

6. Kashi Nath Bhatt & ors. Vs Atma Ram & ors.
AIR 1973 (Alld.) 548

7. Gopal Chandra Mitra & ors. Vs Kalipada Das &
ors. AIR 1987 (Cal) 210
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
173
8. Mt. Sumitra & anr. Vs Dhannu Bhiwaji AIR
1952 Nagpur 193

9. Smt. Kamla Devi Vs Sunni Central Board of
Waqfs, U.P. AIR 1949 (Alld.) 63

10. Girdhari Lal Batra Vs Krishan Lal Batra & ors.
2018 SCC Online (Del) 12547

11. Badri Narain Prasad Chaudhary & ors. Vs Nil
Ratan Sarkar 1978 (3) SCC 30

12. Smt. Saira Vs Smt. Mariyam Sattar AIR 2007
(Alld.) 179

13. Ghanteshwar Ghosh Vs Madan Mohan
Ghosh & ors. (1996) 11 SCC 446

14. Woodland Manufacturers Ltd. Vs Shankar
Prasad & ors. 2006 SCC Online (Calcutta) 304

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The issue involved in the instant
second appeal revolves around the scope and
ambit of Section 4 of the Partition Act, 1893.

2. The present second appeal has been
preferred by the plaintiffs/appellants being
aggrieved against the judgment and decree
dated 14.02.2017 passed by the First
Appellate Court in Regular Civil Appeal
No. 63 of 2016 whereby the Lower
Appellate Court allowed the defendants
appeal and set aside the judgment and
decree dated 20.01.2016 passed by the
Civil Judge, Senior Division, Lucknow in
R.S. No. 436 of 2009 whereby the counter
claim of the defendant was denied, as a
result the counter claim has been decreed.

3. The instant second appeal was
admitted on the following two substantial
questions of law which read as under:-

"i. Whether the valuation of share
of the stranger in house of the shareholder
must be made by the court on the date of
judgment determining the respective shares
of the transferee and the co-sharer ? If yes,
its effect on the decree passed by the lower
appellate court.

ii. Whether the "Undertaking "
must be un-conditional ? and if yes whether
the absence of any finding recorded by
lower appellate court in favour of the
present respondent that he gave unconditional 'undertaking to buy' the benefit
of Sec. 4, partition Act could have been
extended? and, if not, its effect?"

Factual Matrix:

4. In order to appreciate the
controversy involved, it will be relevant to
notice the facts giving rise to the present
appeal.

5.

Devi
Shankar
Shukla
(the
respondent herein and referred to as the cosharer) instituted a suit bearing No. 4 of
2007 before the Court of Civil Judge,
Senior Division, Lucknow, seeking a
decree of declaration against the following
defendants namely Vijay Shankar Shukla,
Ravi
Shankar
Shukla,
Smt. Pratibha
Shukla, Dr. Kripa Shankar Shukla and
subsequently by amendment Sri Satya
Prakash Nigam (transferee) was also
impleaded as a defendant.

6. It was the case of the respondent
herein that one Smt. Sadhu Devi wife of
late Sri Sarjudeen Shukla was the exclusive
owner in possession of the house bearing
old house No. 19 and 15/8 and New Nagar
Nigam House No. 50/110 situate at Jai
Narayan Road, Hussainganj, Lucknow
having purchased the said house by means
of registered sale deed dated 13.10.1917.

7. It was also pleaded that Sarju Deen
Shukla had two sons from his first wife
174 INDIAN LAW REPORTS ALLAHABAD SERIES
namely Shyam Sunder Shukla and Shyam
Manohar Shukla while from his second
wife namely Smt. Sadhu Devi, he had a son
namely Gaya Shankar Shukla.

8. Sri Shyam Manohar Shukla died
during the lifetime of Sri Shyam Sunder
Shukla. The wife of Shyam Manohar
Shukla namely Smt. Tulsa Devi and Shyam
Sunder Shukla both in their lifetime, on
14.11.1931, had relinquished their shares in
favour of Smt. Sadhu Devi in respect of the
property in question.

9. Thus, Smt. Sadhu Devi was the
exclusive owner in possession of the
property in question and after her death, the
father of the respondent herein namely
Gaya Shanker Shukla became its exclusive
owner. The respondent herein was born in
the said property and continued to live
therein with his parents. His father expired
on 15.11.1992 and his mother too expired
on
16.10.2005,
leaving
behind
the
respondent and three other siblings and
thus the respondent claimed 1/4th share in
the property in question.

10. It was also pleaded that one of the
brothers of the respondent namely Sri
Anoop
Shankar
Shukla
expired
on
11.05.2004 and his share devolved on his
wife namely Smt. Pratibha Shukla. It was
also pleaded that though by means of the
registered deed dated 14.11.1931. Smt.
Tulsa Devi and Shyam Chandra Shukla had
relinquished their shares in favour of Smt.
Sadhu Devi but later it came to light
(through a sale deed executed by the
defendants nos. 1, 2 and 3 of Suit No. 4 of
2007 in favour of the defendant no. 5) that
Smt. Sadhu Devi had executed a gift deed
in favour of the defendant no. 4 Dr. Kripa
Shankar Shukla and thus, the respondent
herein who was the plaintiff of the Regular
Suit No. 4 of 2007 sought a declaration that
the gift deed dated 14.11.1931 be declared
as null and void.

11. During the pendency of the
aforesaid suit, the original defendants nos.
1, 2 and 3 sold their share in favour of
Satya Prakash Nigam. Thus, the respondent
herein moved an application under Order 1
Rule 10 C.P.C. and impleaded Sri Satya
Prakash Nigam as the defendant no. 5.
During the pendency of the suit, the
defendant no. 5 namely Satya Prakash
Nigam further transferred the property in
favour of Sri Yogesh Kesarwani and Dr.
Mukesh Kesarwani (hereinafter referred to
as appellants/ the stranger purchasers).

12. Dr. Mukesh Kesarwani and Sri
Yogesh Kesarwani (plaintiffs of Regular
Suit No. 436 of 2009 instituted a suit for
partition seeking separation of their 3/4th
share in House No. 50/8, Jai Narayan Road,
Hussainganj, Lucknow.

13. Both the suits related to the
property in question between the same
parties and their successors in interest,
hence, they were consolidated by the Court
of Civil Judge, Senior Division, Lucknow
and R.S. No. 4 of 2007 was made the
leading case.

14. In the suit for partition instituted
by the stranger purchasers numbered as
R.S. No. 436 of 2009, the defendant Devi
Shankar Shukla (respondent herein) while
filing his written statement also set up a
counter claim wherein he raised the plea
that since he was the co-sharer, hence, in
exercise of his right conferred under
Section 4 of the Partition Act, 1893 he
sought to purchase the 3/4th share of the
stranger purchasers at the price at which the
stranger purchasers had purchased the
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
175
property from Sri Satya Prakash Nigam or
at such price to be determined by the Court.

15. After the exchange of pleadings,
the Trial Court framed the following issues
which emerged from the pleadings of R.S.
No. 4 of 2007 which read as under:-

"(i) Whether in light of the
averments made in the plaint, the plaintiff
is entitled to 1/4th share in the ancestral
house bearing 50/8 (old number) and
50/110 (new number) situate at Jai
Narayan Road, Hussainganj, Lucknow, the
boundaries of which are mentioned in
paragraph 2 of the plaint? if yes, its effect.

(ii) Whether the plaintiff is
entitled to get the gift deed dated
14.11.1931 executed in favour of the
defendant no. 4 declared as null and void?
if yes, its effect.

(iii) Whether in light of the
pleadings, the plaintiff is entitled to get the
sale deed dated 10.01.2007 executed in
favour of the defendant no.5 declared as
void, if yes, its effect.

(iv) Whether the defendants are
illegally
interfering
in
the
peaceful
possession of the plaintiff, if yes, its effect.

(v) Whether the plaintiff is
entitled to any relief."

16. In light of the pleadings
exchanged in Regular Suit No. 436 of
2009, the following issues were framed.

(vi) Whether the plaintiffs are
entitled to get their 3/4th share separated from
the defendant, if yes, its effect.

(vii) Whether the defendant is
entiled to the relief claimed in his counter
claim to buy the share of the stranger
purchasers at Rs. 9,00,000/-and if so, its effect.

(viii) Whether the defendant is
entitled to purchase the share of the
stranger purchasers in terms of Section 4 of
the Partition Act, 1893, if so, its effect.

(ix) Whether the plaintiffs and the
defendants are entitled to any relief in
terms of the prayer made in the plaint and
the written statement containing counter
claim ?

17. Since Regular Suit No. 4 of 2007
was made the leading case, accordingly, the
evidence was led in the said suit. Sri Devi
Shankar Shukla examined himself as P.W. 1
while he examined Sri Shailendra Kumar
Mishra as P.W. 2 and filed documentary
evidence.

18. The defendants examined Sri
Yogesh Kesarwani as D.W. 1 and Priyank
Shukla
as
D.W.
2
and
also
filed
documentary evidence in support of their
contentions.

19. The Trial Court held that the gift
deed executed in favour of Kripa Shankar
Shukla could not be declared as null and
void as Sri Kripa Shankar Shukla died
during the pendency of the Suit and the
respondent herein admitted in his crossexamination that Kripa Shankar Shukla was
survived by his legal heirs but they were
not brought on record, hence, the suit
abated. Accordingly, issue no. (ii) was
decided in the negative against the
respondent herein. However, while dealing
with issue no. (i), it held that Devi Shankar
Shukla (respondent herein) had 1/4the
share in House No. 19, 50/8 (old) and
50/110 (new number) situate at Jai Narayan
Road, Hussainganj, Lucknow.

20. While dealing with issues nos.
(vii) and (viii) which emerged from the suit
for partition instituted by the stranger
purchaser, the Trial Court found that the cosharer did not give any un-conditional offer
176 INDIAN LAW REPORTS ALLAHABAD SERIES
to purchase the share of the stranger
purchasers
at
the
market
value,
consequently, the said issues were decided
against the respondent herein.

21. While dealing with issue no. (vi),
the Trial Court concluded that since the
stranger purchasers had purchased the 3/4th
share from the other co-sharers after paying
a valuable sale consideration and the said
sale deed was duly registered, also, as the
respondent herein had not given an
unconditional offer to purchase the share of
the earlier transferee Sri , Satya Prakash
Nigam, hence, could not claim the benefit
of Section 4 of the Partition Act, hence, the
stranger purchasers were entitled to get
their 3/4th share partitioned, accordingly,
deciding the said issue in favour of the
stranger purchasers/the appellant herein.

22. In light of the aforesaid findings,
the issues nos. (iii) (iv) and (v) were
decided against the respondent herein.

23. The Trial Court by means of
judgment and decree dated 20.01.2016 held
the suit bearing No. 4 of 2007 to have
abated
but
declared
the
respondent
herein/the co-sharer having 1/4th share in
the property bearing 19, 50/8 (old) and
50/110 (new number) situate at Jai Narayan
Road, Hussainganj, Lucknow. The suit of
the stranger purchasers bearing No. 436 of
2009 was decreed declaring them to be
owner of 3/4th share in the said property
and entitled to get their share partitioned.
The counter claim filed by Devi Shankar
Shukla,
the
respondent
herein
was
dismissed.

24. The respondent herein, being
aggrieved against the said judgment and
decree dated 20.01.2016 passed by the Trial
Court preferred two Regular Civil Appeals
under Section 96 C.P.C. The Regular Civil
Appeal No. 62 of 2017 emerged from
Regular Suit No. 4 of 2007 whereas
Regular Civil Appeal No. 63 of 2016 arose
from Regular Suit No. 436 of 2009. The
Lower Appellate Court noticed that the
respondent herein did not press the Regular
Civil Appeal No. 62 of 2017 emerging out
of Regular Suit No. 4 of 2007 and
dismissed the said appeal as not pressed.

25. While dealing with Regular Civil
Appeal No. 63 of 2016, the Lower
Appellate Court framed the following
points for determination:-

"(i)
Whether
the
respondent
herein (the appellant before the Lower
Appellate Court was ready and willing to
purchase the 3/4th share of the stranger
purchasers in furtherance of Section 4 of
the Partition Act.

(ii) Whether the Trial Court while
passing the impugned judgment and decree
dated 20.01.2016 has misconstrued the
scope and ambit of Section 4 of the
Partition Act, 1893."

26. Upon hearing the learned counsel
for the parties, the Lower Appellate Court
allowed the appeal and held that the house
in question was a family dwelling house
and in terms thereof the respondent herein
was entitled to exercise his right under
Section 4 of the Partition Act, 1893 and
was entitled to purchase the share of the
stranger purchasers for a sum of Rs.
9,00,000/-. It also recorded a finding that
the date on which the respondent herein
exercised his right of purchase was the
material date on which the valuation was to
be considered and directed the stranger
purchasers to receive a sum of Rs.
9,00,000/- from the respondent herein and
execute a sale deed in his favour within a
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
177
period of 3 months on expenses and stamp
duty to be payable by the respondent
herein.

27. The stranger purchasers (the
appellant herein) have assailed the said
judgment and decree dated 14.02.2017
passed by the Special Judge (Prevention of
Corruption
Act),
Court
No.
2/ADJ,
Lucknow by means of the instant second
appeal on the questions of law as
enumerated hereinabove first:-

Submissions
on
behalf
of
the
Appellants:-

28. Dr. L.P. Mishra, learned counsel
for the appellants has primarily focussed
his submissions on the following points.

(i) The Lower Appellate Court
has committed a grave error in taking the
date of valuation of the property in question
as the date on which the respondents made
his offer to purchase the share of the
appellants in terms of Section 4 of the
Partition Act. According to Dr. Mishra, the
date on which the preliminary decree was
passed ought to have been taken as the date
of valuation of the property.

(ii) The other issue raised by Dr.
Mishra is that the offer to purchase as made
by the respondent was not un-conditional.
It has been urged that though in the
pleadings it was stated by the respondents
that he was ready to purchase the share of
the stranger purchasers on the market value
or such value to be determined by the Court
but during the course of the trial from his
statement in the cross examination, he
belied his pleadings and had made a
statement which categorically established
that the offer was conditional and this could
not have been treated as substantial
compliance of Section 4 of the Partition Act
to enable the respondents to purchase the
share of the appellants/stranger purchasers.

(iii) It was urged that the Lower
Appellate Court failed to note that the
respondent himself was responsible for
delaying the proceedings, inasmuch as,
large number of adjournments were sought
by respondent and thereafter it is not
justified for the respondent to urge that the
date on which he made his offer to
purchase the share of the appellants should
be taken to be the date of valuation of the
share of the stranger purchaser rather in the
aforesaid
circumstances
the
date
for
valuing the share could not be prior to the
date of passing of the preliminary decree
i.e. the date on which the contentious issues
raised by the parties were resolved and
decided by the Trial Court, hence, the right
of the party to enforce his right under
Section 4 would accrue for the first time,
once the decree was passed and not prior
thereto.

(iv) The learned counsel for the
appellants has also submitted that the
Lower Appellate Court while decreeing the
counter claim of the respondent and
holding that the respondent was entitled to
purchase
the
share
of
the
stranger
purchasers at Rs.9,00,000/- has erred in
exercise of jurisdiction, inasmuch as, the
legislative intent as reflected in Section 4 of
the Partition Act requires the Court to
determine the value of the share whereas no
such determination was undertaken either
by the Trial Court or the Lower Appellate
Court, thus, holding the figure of Rs.
9,00,000/- as the value was not only
contrary to the provision of the Act but was
also without any basis, hence, the manner
in which the Lower Appellate Court has
arrived at the finding is perverse.

(v) It is also urged by the learned
counsel
for
the
appellant
that
the
respondent was not entitled to exercise his
178 INDIAN LAW REPORTS ALLAHABAD SERIES
right in terms of Section 4, inasmuch as,
the evidence on record indicated that the
house in question was not a family
dwelling house. Unless and until it was
established that the house in question was a
family dwelling house till then it was not
open for the respondent to exercise the
rights in terms of Section 4 of the Partition
Act nor the Court was justified in decreeing
the counter claim in favour of the
respondent.

(vi) It has also been submitted
by the learned counsel for the appellants
that the Lower Appellate Court has
further committed an error by relying
upon the decision of the Apex Court in
the case of Malati Ramchandra Raut
and Others Vs. Mahadevo Vasudeo Joshi
and others reported in 1991 Supp (1)
SCC 321 to arrive at its conclusion as the
said decision was passed on the principles
of Section 2 and 3 of the Partition Act
which were not applicable in the present
case as admittedly the instant case was
squarely covered by Section 4 of the
Partition Act. Hence, the reliance placed
by the Lower Appellate Court on the
decision of the Apex Court was not
justified and moreover by doing so, in
turn has negated the ratio of decision of
the Apex Court in the Case of Badri
Prasad Narain Prasad Chaudhary and
Others Vs. Nil Ratan Sarkar reported in
(1978) 3 SCC 30.

(vii) Lastly, the learned counsel
for the appellants has also drawn the
attention of the Court to C.M. Application
No. 154367 of 2021 moved under Section
152 read with Section 151 C.P.C. with the
averment that the decree which has been
passed by the two courts requires to be
corrected/amended, inasmuch as, the
boundaries of the house which has been
mentioned is not correctly stated and the
effect is that under the garb of the said
boundaries as mentioned in the decree,
the respondent would be entitled to a
much larger area and at the time of
execution, it would create unnecessary
complications giving rise to unwarranted
litigation.

(viii) It has also been pointed out
and as evident from the facts narrated
hereinabove, first, the respondent Devi
Shankar Shukla had initially instituted a
Regular Suit No. 4 of 2007 whereas the
boundaries of the said house were larger
and the suit of partition which was
instituted
by
the
appellants/stranger
purchaser in the year 2009 was confined to
a lesser area and though the suit no. 4 of
2007 stood abated but as the two suits i.e.
Regular Suit No. 4 of 2007 and 436 of
2009 were consolidated and decided by the
common judgment and decree, accordingly,
the Trial Court as well as the Lower
Appellate Court have taken the boundaries
of Suit No. 4 of 2007 which could not have
been done and to that extent it is urged that
the application under Section 151 read with
Section 152 C.P.C. be allowed.

29. The learned counsel for the
appellants in support of his submissions has
relied upon the following cases:-

(i) Iliyas Ahmad and Others Vs.
Bulaqi Chand and Others reported in AIR
1917 (Alld.) 2;

(ii) Krushnakar and Others Vs.
Kanhu Charan Kar and Others reported in
AIR 1962 (Ori) 85

(iii) An unreported case of
Govind Ji Doase Vs. Kamji Mavji, Civil
Revision No. 18 of 1951, decided by the
Court of Kutch Judicial Commissioner on
19.07.1951.

(iv) Kashi Nath Bhatt and
Others Vs. Atma Ram and Others reported
in AIR 1973 (Alld.) 548;
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
179

(v) Gopal Chandra Mitra and
Others Vs. Kalipada Das and Others
reported in AIR 1987 (Cal) 210 ;

(vi) Mt. Sumitra and Another Vs.
Dhannu Bhiwaji reported in AIR 1952,
Nagpur, 193.

(vii) Smt. Kamla Devi Vs. Sunni
Central Board of Waqfs, U.P. reported in
AIR 1949 (Alld.) 63

(viii) Girdhari Lal Batra Vs.
Krishan Lal Batra and others reported in
2018 SCC Online (Del) 12547;

(ix)
Badri
Narain
Prasad
Chaudhary and Others Vs. Nil Ratan
Sarkar reported in 1978 (3) SCC 30

Submissions
on
behalf
of
the
respondent.

30. Sri B.K. Saxena, learned counsel
for the respondent has controverted the
submissions of the learned counsel for the
appellant and has supported the judgment
passed by the Lower Appellate Court.

(i) Primarily, it has been urged by
Sri Saxena that in so far as the present
proceedings are concerned, the pleadings
would indicate that there was actually no
dispute in so far as the rights of the parties
is concerned. He has submitted that the
appellants/stranger purchaser in their suit
for partition clearly stated that they had
purchased 3/4th share from the erstwhile
co-sharer whereas the respondent had 1/4th
share in the property. This factual position
was not disputed by the respondent while
filing his written statement including in his
counter claim.

(ii) It is stated that the respondent
apart from the pleadings the enforcement of
his right under Section 4 of the Partition
Act in the written statement containing
counter claim, the respondent had also
moved a separate application seeking
enforcement of his rights to purchase the
share of the stranger purchaser. Thus, at the
first given available opportunity, the
respondent had expressed undertaking and
his willingness to purchase the share
unconditionally.

(iii) It is, thus, urged that in light
of the pleadings, there was actually no
dispute and nothing prevented the Court to
have passed the preliminary decree wherein
the shares of the respective parties are
determined. Hence, the date of filing of the
written statement containing counter claim
or in the alternative the date on which the
respondent made a separate application
seeking enforcement of his rights to
purchase the share of the stranger purchaser
would be the material date for determining
the valuation of the share of the stranger
purchaser and not the date of the
preliminary decree. The respondents cannot
be penalized to pay a higher sum prevailing
at a subsequent point of time when he had
already
expressed
his
unconditional
willingness to purchase the share in the first
instance.

(iv) It is also urged by Sri Saxena
that the submissions of the respondent in
his cross-examination is being culled out in
isolation to give an incorrect picture before
the Court. It is stated that if the pleadings
of the respondent in his written statement
containing counter claim and seeing the
line of questioning of the respondent during
his cross-examination, it would indicate
that the respondent had not made any
condition to purchase the share of the
stranger purchaser rather the respondent
had merely turned down the suggestion of
the appellant, that in case if a higher sum is
offered to the respondent he would not sell
his share to the appellants nor was he ready
to purchase the share of the stranger
purchaser at a price determined by the
appellants. Thus, it is urged that the
180 INDIAN LAW REPORTS ALLAHABAD SERIES
contention of the learned counsel for the
appellant that the respondent had given a
conditional offer to purchase is quite
incorrect & fallacious and is nothing but
misreading of the evidence.

(v) The learned counsel for the
respondent has also urged that admittedly
the house in question was a family dwelling
house. This was also evident from the
statement of the witness examined on
behalf of the appellants, yet, it was the
appellants
who
had
delayed
the
proceedings by taking a long time in filing
the written statement to the counter claim
filed by the respondent and thus, the delay
in the proceedings cannot solely be
attributed to the respondents rather the
appellant himself has contributed to the
delay and now having suffered a decree
cannot cry foul to state that the respondent
is not entitled to his right in terms of the
decision rendered by the Apex Court in the
case of Malati Ramchandra Raut (Supra).

(vi) It is further urged by the
learned counsel for the respondent that
though Sections 2 and 3 on one hand and
Section 4 of the Partition Act on the other
hand apply on different fact situations but
the fact remains that in so far as the manner
of valuation and determination of value of
share is concerned, the principles regarding
the date on which valuation is to be done
would remain the same.

(vii) It is also submitted that the
Lower Appellate Court having noticed this
aspect of the matter has rightly relied upon
the decision of the Apex Court in Malati
Ramchandra Raut (Supra) while coming
to the conclusion that the valuation of the
share in the property is to be done on the
date when the right accrued and in the
instant case, it would be the date on which
the respondent had agreed to purchase the
share of the stranger purchaser. It is further
urged that relying upon the decision of
Malati Ramchadra Raut (Supra) by the
Lower Appellate Court, it in no manner
negates the ratio of the decision of Badri
Narain Prasad Chaudhary (Supra).

(viii) The learned counsel for the
respondents has placed much emphasis on
the fact that during the pendency of the
earlier suit No. 4 of 2007, the original cosharers had sold their 3/4th share in favour
of Sri Satya Prakash Nigam. The said sale
deed was executed on 10.01.2007 for the
total consideration of Rs. 8,00,000/-. Sri
Nigam sold the same in favour of the
present appellants on 22.07.2008 for a sum
of Rs. 8,87,811/- but as the market value
was Rs. 9,00,000/-, thus upon the said
value the stamp duty was paid.

Moreover, when the appellants
instituted the suit for partition in the year
2009 even then they had valued their share
at Rs. 9,00,000/- and throughout the trial
they never made any statement nor led any
evidence to indicate that since the time of
purchase of the 3/4th share from Sri Nigam
till the date of filing of the suit or even till
the date of filing of their written statement
to the counter claim, instituted by the
respondent, the prices of the property had
enhanced.

(ix) In this situation where there
was practically no dispute regarding the
value and extent of the share of the stranger
purchaser and that the respondent had 1/4th
share, thus, the Court ought to have
immediately permitted the respondent to
purchase the share of the stranger purchaser
which was not done. Even though an
application was moved requiring the Trial
Court to decide the application under
Section 4 of the Partition Act by the
respondent but the Trial Court passed an
order that the said application would be
considered after the parties lead evidence
and in this manner, it cannot be said that
the respondent was responsible for the
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
181
delay nor his bonafides could be disputed
neither it could be said that the respondent
had made a conditional offer.

(x) Lastly, it has been urged by
Sri Saxena that in so far as the C.M.A. No.
154367 of 2021 regarding correction is
concerned,
as
there
is
an
apparent
discrepancy in the boundaries as mentioned
in the plaint of R.S. No. 4 of 2007 and 436
of 2009 to that extent the decree may be
corrected to do substantial justice between
the parties.

31. The learned counsel for the
respondent in support of his submissions
has relied upon the following decisions of

(i) Smt. Saira Vs. Smt. Mariyam
Sattar reported in AIR 2007 (Alld.) 179 ;

(ii) Ghanteshwar Ghosh Vs.
Madan Mohan Ghosh and Others reported
in (1996) 11 SCC 446;

(iii) Malati Ramchandra Raut
and Others Vs. Mahadevo Vasudeo Joshi
and others reported in 1991 Supp (1) SCC
321;

(iv) Woodland Manufacturers
Ltd. Vs. Shankar Prasad and Others
reported in 2006 SCC Online (Calcutta)
304.

Discussions and Analysis:-

32. The Court has heard the learned
counsel for the parties and perused the
record. The learned counsel for the parties
have
also
submitted
their
written
submissions along with the decisions upon
which they have placed reliance. The Court
has noticed the same and it shall be dealt
with at the appropriate place later in the
judgment.

33.

Before
dealing
with
the
substantial questions of law as formulated,
the Court proposes to deal with the
submissions as to the house in question not
being a family dwelling house as argued by
the learned counsel for the appellant.

34. The submission of the learned
counsel for the appellants that the property
in question is not a dwelling house hence
the respondent is not entitled to claim
benefit of Section 4, though, is not a
question of law as framed but nevertheless
since the argument has been raised, hence it
is being dealt with.

35.

Considering
the
material
pleadings on record as well as from perusal
of the evidence both oral and documentary,
this issue was not raised before the Court
below. The appellant did not raise this plea
in his written statement to the counter
claim. None of the parties led any evidence
on the point as it was not an issue. Hence,
at this stage, this Court does not deem
appropriate to enter in the said issue afresh.
Moreover, no material has been brought to
the notice of the Court to indicate that the
said house was ever partitioned before the
institution of the instant proceedings.

36. Merely, at some point of time, the
respondents and the other co-sharer (the
predecessors in interest of the appellants)
were residing as per their convenience in
separate portions would not mean that the
house in question was formally partitioned
and it lost its character of a dwelling house.
Even though the relations between the cosharers was not cordial as suggested by the
learned counsel for the appellants, yet it
will not deprive the house of its character
of being a dwelling house.

37. The two courts below have
proceeded on the premise that the house in
question is a family dwelling house, hence,
this Court is not inclined to interfere with
182 INDIAN LAW REPORTS ALLAHABAD SERIES
the
said
premise,
accordingly,
the
submission of the learned counsel for the
appellants that the property in question is
not a dwelling house and thus the
respondent is not entitled for the benefit of
Section 4 of the Partition Act is turned
down.

38. Moving on to the substantial
questions of law as formulated, the Court
proposes to deal with the substantial
questions of law formulated at serial no. (ii)
first, relating to the undertaking given by
the respondent to buy out the share of the
appellants.

39. The submission of learned counsel
for the appellant is that the undertaking
must be un-equivocal and unconditional
and only then the same can be relied upon.

40. The learned counsel for the
appellant in support of his aforesaid
submission has relied upon the decision of
this Court in Iliyas Ahmad and Others Vs.
Bulaqi Chand and Others reported in AIR
1917 (Alld.) 2 wherein it was held that
while enforcing the right under Section 4,
there must be something more than a mere
offer and the undertaking give to the Court
should be unconditional and a person
should not be able to resile from the same.

41. The other decision on the
aforesaid point is Krushnakar and Others
Vs. Kanhu Charan Kar and Others
reported in AIR 1962 (Orissa) 85 wherein
Orissa High Court has also opined that the
undertaking in terms of Section-4 of the
Partition Act must be unconditional.

42. In the decision of the court of
Kutch Judicial Commissioner in Govind Ji
Doase Vs. Kamji Mavji passed in Civil
Revision No. 18 of 1951 and decided on
19.07.1951 a similar view has been
expressed that the undertaking should be
unconditional.

43. It has been urged that in the
instant case, the respondent did not make
an unconditional offer, hence, he was not
entitled to the benefit of Section 4 of the
Partition Act.

44. The learned counsel for the
appellants
in
order
to
buttress
his
submissions has stated that the respondent
throughout has stated that he is ready and
willing to purchase the share of the
appellant at Rs. 9,00,000/-. He has further
drawn the attention of the Court to the
extracts of the cross-examination of the
respondent wherein it is stated that the
respondent had responded by saying that he
will purchase the share of the appellants at
Rs. 9,00,000/- as mentioned in the sale
deed. He also declined the offer of the
appellant who proposed to buy the share of
the respondent at Rs. 20,00,000/- This has
been shown to state that the undertaking
given by the respondent is only conditional
and he was not ready to pay the share of the
appellants at the market value rather he
wanted to buy only at Rs. 9,00,000/-

45. The learned counsel for the
respondent on the other hand submits that
the respondent both in his written statement
as well as in a separate application bearing
Paper No. C-17 had clearly given his
undertaking to purchase the share of the
stranger purchaser and throughout he has
been ready and willing to purchase the
share and in the aforesaid facts and
circumstances, it cannot be said that any
conditional undertaking was given.

46. The learned counsel for the
respondents has further submitted that the
2 All. Yogesh Kesarwani & Anr. Vs. Devi Shankar Shukla
183
extracts of the cross-examination have been
read out in isolation. It is submitted that on
an conjoint and complete reading, it would
indicate that the reply by the respondent
was in context of an unproved valuer's
report which was put to the respondent
during cross-examination to which he
responded and turned down the suggestion
and offer of the appellants to purchase the
share of the respondent at a higher price so
also
the
respondents
declined
the
suggestion to purchase the share of the
appellants at the price suggested by the
valuer. Nevertheless, the respondent never
refused to buy at the price to be determined
by the Court. Thus, it cannot be said that
the undertaking was conditional.

47. Having considered the aforesaid
submissions and from the perusal of the
record, it is no doubt true that an
undertaking as contemplated under Section
4
of
the
Partition
Act
must
be
unconditional. Now in the instant case, the
record reveals that the respondent in his
written statement as well as in the
Application bearing Paper No. C-17 had
given a clear undertaking that he is ready to
buy out the share of the appellate at Rs.
9,00,000/- or such other sum to be
determined by the Court. Even from the
perusal of the cross-examination of the
respondent, it cannot be said that his offer
was conditional. The answers in the crossexamination have to be seen in context with
the questions and it would reveal that by
referring to the valuer's report (which as
already noticed had not been proved in
accordance with law), the respondent had
stated that he will not buy the share of the
appellant at the rate given by the valuer and
that even if a higher sum is offered to the
respondent, he will not sell his share to the
appellants. However, there has been no
denial by the respondent to buy the share of
the appellants nor any conditional offer was
made by the respondent.

48. Considering this aspect of the
matter, this Court holds that in so far as the
undertaking is concerned, the same was
unconditional and the respondent is entitled
to exercise his rights under Section 4 of the
Partition Act. The Lower Appellate Court
has considered the issue in its entirety and
has reversed the finding of the Trial Court
on the issue of undertaking. The view of
the Lower Appellate Court cannot be said
to be against the settled legal principles,
hence, on this point no interference is
called for. The substantial questions of law
at Serial No. (ii) stands answered.

49. Now, considering the substantial
question of law as framed by the Court at
serial No. (i) dealing with the valuation of
the share of the stranger purchaser, this
Court finds that while doing so it will
necessarily involve consideration of the
fact that (i) who is to make such a valuation
and (ii) what would be the material date on
which the valuation is to be determined.

50. At this stage, before proceeding
any further, it would be meaningful to refer
to Section 4 of the Partition Act, 1893
which reads as under:-

"4. Partition suit by transferee
of share in dwelling-house.--